State v. Raymond L. Nieves, 2014AP1623-CR, 4/5/16, District 1 (recommended for publication, but not published); petition for review granted 9/13/16; case activity (including briefs).
This case explores the line between Bruton v. U.S., 391 U.S. 123 (1968)(which holds that at a joint trial the confession of one defendant is inadmissible against the co-defendant unless the confessing defendant testifies and is subject to cross examination) and Richardson v. Marsh, 481 U.S. 200 (1987)(which holds that a non-testifying defendant’s written confession can be admitted if it is redacted to eliminate all references to his co-defendant). Nieves and his codefendant, Maldonado, were accused of 1st degree intentional homicide. The trial court denied severance and allowed a witness testify about Maldonado’s confession while repeatedly use the term “they” (implicating Maldonado and Nieves). The court of appeals ordered a new trial because admission of the confession evidence violated the Confrontation Clause.
Severance: Trinidad was the witness to Maldonado’s confession, and the court of appeals was troubled by his repeated use of the word “they”:
¶29 We recognize that Trinidad’s recitation of Maldonado’s confession regarding the details of the shooting neither implicated Nieves by name nor included an obvious redaction evidenced by the use of a blank space or symbol as occurred in [Gray v. Maryland, 523 U.S. 185, (1998)]. However, Trinidad’s recitation of Maldonado’s confession did implicate a second unnamed shooter through the repeated use of “they,” and under the circumstances—and particularly in light of Trinidad’s testimony that Maldonado told him that he (Maldonado) had been at a location associated with Nieves around the time of the shootings—the reasonable inference arising from Maldonado’s apparent confession to Trinidad was that Nieves was the unnamed second shooter. That testimony gave life to the exact concern that trial counsel raised in Nieves’s pretrial motion to sever.
For a defense win in the 7th Circuit on a Bruton issue, click here.
Harmless error: Naturally, the State argued that if an error occurred it was harmless. The court of appeals disagreed. It summarized the evidence supporting the conviction but concluded: “we are not convinced that the State has established beyond a reasonable doubt that the error in failing to sever Nieves’s trial in no way contributed to the verdicts obtained against Nieves.” Slip op. ¶32. It further noted that the trial court failed to give a limiting instruction telling the jury that evidence about Maldonado’s confession could only be used against Maldonado. Slip op. ¶32
Admission of “state of mind” hearsay evidence: The court of appeals also reversed the trial court’s decision to allow David, a survivor of the shooting, to testify that a person named “Boogie Man” told him that Nieves and Maldonado were planning to kill him. The trial court said that this hearsay evidence was admissible so that the jury could understand how David “felt.” In other words, the jury should know the effect of Boogie Man’s words on David’s state of mind. See State v. Wilson, 160 Wis. 2d 774, 779, 467 N.W.2d 130 (Ct. App. 1991). The court of appeals didn’t buy that reasoning at all:
[H]ow David felt about what a third party identified only as “Boogie Man” told him about Nieves’s and Maldonado’s alleged plan to kill David is neither related nor relevant to whether Nieves committed the crimes charged. Such testimony should have been excluded. We can think of no legitimate reason that the State sought to introduce “Boogie Man’s” out-of-court statement other than to establish that Nieves intended to—and did—commit the crimes charged. Accordingly, the trial court failed to apply a proper legal standard, and we therefore conclude that the trial court erred in allowing David to testify about what “Boogie Man” told him. Slip op. ¶42